In keeping with the general attention given to the Supreme Court during election campaigns, the subject was entirely ignored in last night’s debates, even though it’s one area where presidents have substantial power in any partisan configuration of Congress. (Well, most people believe that.) Despite this, the upcoming Supreme Court term could have a substantial policy impact in a lot of important areas.

Comments (33)

I don’t give Obama a ton of credit, but frankly if I were him I’d have not mentioned it either.

One of our oh-so-charming political fictions is that the Supreme Court should be/is above the partisan fray, peopled by scholarly, sober jurists who adhere to a purer, nobler constitutional vision than that practiced by our corrupt legislators.

This is pure bunk, of course, but pointing it out will turn you into a slain messenger pretty quickly. And usually that’s an acceptable price for speaking the truth (in my opinion) but responsibility for moving the needle on this lies with the Senate, not the President. The President just submits a staffing recommendation. The Senate conducts the hiring and the Congress in general can even dictate how big the Court is and fire Justices if it so chooses.

it’s one area where presidents have substantial power in any partisan configuration of Congress.

Entirely true, but only because, as in so many other things, Congress has abrogated its responsibility here.

In my opinion, it’s the responsibility of Senators and the Senate to answer two questions with regard to judicial appointments: “Is this person competent” (to weed out the Harriet Miers) and “Does this person subscribe to a constitutional vision I find congenial” (to weed out the Robert Borks.)

And on the second issue the Senate absolutely, in my opinion, has abrogated its responsibility.

The reason Presidents have substantial power over judicial appointments regardless of the partisan configuration of Congress is, in my opinion, because SC nominees are high-profile and because Senators are reluctant to say “of course this person is qualified in a narrow technical sense, and they’re entirely consistent in their rulings, but I find those rulings abhorrent and will not vote for them.” There’s a sense that making the courts all ickily POLITICAL is wrong, and that’s a sense supported by the Village and the media.

Do you think an equilibrium in which it’s harder for presidents to make judicial appointments is really desirable?

If the Congress decides that it doesn’t want to staff the courts, that is its prerogative. They’d usually be wrong to do so, of course, but in terms of legitimacy its a valid choice. How hard or easy it is for the President to get Congress to assent to his hiring recommendations doesn’t really enter into it in my mind.

The problem with this is that we do actually need functioning court systems. And, given how politicized the courts have become, you will pretty much always have 40 members of the minority who do not agree with the constitutional vision of the nominee, whether it’s for SCOTUS or lower courts. Making judicial nominations even more political means having a court system where cases can’t get heard for lack of judges. That’s a disaster.

Making judicial nominations even more political means having a court system where cases can’t get heard for lack of judges. That’s a disaster.

Judicial nominations ARE political, though. I mean, you can just decide that they’re not. The political views of sitting judges have wide-ranging, dramatic impact on how we live our lives.

I agree that its a disaster if cases can’t get heard for lack of judges, but staffing the courts is the job of the Senate. Short of violent revolution, if we decide the Senate isn’t doing its job the only real response is ‘get new Senators.’

Judicial nominations are political, but they’re generally less political than the public perception. Most cases really do involve fairly arcane questions of statutory interpretation, and unanimity (or close to it) is still pretty common even at the Supreme Court.

It’s also far from clear that it’s the job of the Senate to staff the courts. The Constitution doesn’t say that at all. It says the President shall appoint with the advice and consent of the Senate. A regime in which the Senate consents barring extreme facts is entirely consistent with that language. And, if you wanna do the statutory construction thing, the advice and consent provision is in Article II, not Article I.

A regime in which the Senate consents barring extreme facts is entirely consistent with that language.

That’s true, but so is a regime in which the Senate rejects anyone who fails to meet its exacting standards.

My thought is, the President sends appointees to the Senate for consideration, but the Senate not only consents, it actually controls the existence of Federal courts, the number of judges serving on them, their geographical areas of jurisdictions, etc. This to me makes it seem like staffing the courts is MORE the Senates job than the Presidents, although it is of course the job of both.

Again, though, that comes from the Constitution. Article III expressly gives Congress the power to establish lower courts. It doesn’t say that Congress should reject any nominee it finds politically unpalatable. It just says the President needs their advice and consent. Your very broad interpretation of what that means would have incredibly troubling real world consequences. Courts are understaffed as it is.

It doesn’t say that Congress should reject any nominee it finds politically unpalatable.

So you’re saying that Robert Bork should have been confirmed?

Because the only reason he was rejected was because the Senate found him politically unpalatable. It found his stances (political stances) on the first, fourth, and ninth amendments, as well as the right to privacy, unpalatable. And so it didn’t confirm him.

You’re right. No one disagrees that it’s a political process. But what do you do about it?

So now you’re a sitting, liberal Senator (like Senator Boxer). President Romney has a slate of moderately conservative judges. You can either approve most of them, or not because they aren’t liberal enough.

But the “not” vote means that thousands of your constituents will lack medical care, get kicked out of their houses, go without food, lose their jobs, lose their right to vote, get abused by police officers, and get no compensation because (1) their cases won’t be heard for 3 or 4 years, or (2) no lawyer will take their case b/c the lawyer doesn’t want to wait 3 or 4 years for a payday.

So what do you do? Make a marginally more conservative judiciary and actually help people, or condemn thousands of your constituents to suffering?

So what do you do? Make a marginally more conservative judiciary and actually help people, or condemn thousands of your constituents to suffering?

How much suffering will be done be approving the conservative slate of justices, though? What happens when you put people on the bench who are raring and eager to destroy unions, to restrict abortion rights, to further expand corporate personhood? Maybe its better for the judiciary to go understaffed or for there to be an SC vacancy than for that to happen.

I agree that it isn’t an easy decision, and it should keep senators up at night. But if you’re going to play what-if, you have to examine both sides of the equation.

I’m doing nothing of the sort. You suggest that the Senate has abandoned it’s role by confirming conservative justices. I’m just pointing out it’s not as easy as you think to avoid confirming judges, even ones you might detest.

Yeah, in order to “keep the courts functioning,” batshit reactionary Janice Rogers Brown is on the federal bench for life. And she’s only one example of the right-wing extremists let loose in the federal judiciary; that’s without even getting to the decades of damage Sam Alito is free to wreak on Senator Boxer’s constituents and everybody else.

(The key difficulty is “President Romney has a slate of moderately conservative judges.” Mitt Romney won’t carefully select “moderately conservative” judges. He will select whomever is on the wish list of the proto-fascists who got him elected. And Senate Democrats will presumably “keep their powder dry.”)

You suggest that the Senate has abandoned it’s role by confirming conservative justices.

No. I suggest that the Senate is abrogating its responsibilities by not weighting the politics of judicial nominees as much as it should. Our political culture views doing that as ‘icky’ and Senators follow suit.

How much suffering will be done be approving the conservative slate of justices, though?

Yes, but you seem to be assuming that norms that permit the serial rejection of judicial nominees (as opposed to voting against particular outliers, which the Senate is much more likely to do that it ever has) will only be applied to judges you don’t like. They won’t.

If the Senate serially rejects nominees I like, that means that my side lost the political battle.

That happens. Sometimes you lose.

The way to correct that is to win, isn’t it? I mean… President Romney will do a lot of shit I don’t like, but the solution to that isn’t to try and create norms that ensure that no matter who is elected they only ever provide me with congenial outcomes; the solution is to ensure that we get a different President, yes?

If the Senate serially rejects nominees I like, that means that my side lost the political battle.

I agree! So the better equilibrium would be to let the president (who represents a national constituency much more than the malapportioned, dysfunctional Senate) that wins elections nominate judges except in extreme cases, so that we have the same reflection of election results, only with a federal court system that’s actually properly staffed.

It’s easy for a Republican senator to say, “Yeah. We just won’t appoint any judges for the next 8 years. Have fun with that!” They don’t even want a judiciary. They’d rather you had to arbitrate your wage discrimination claim anyway (and lose it!)

It’s Democrats that want a functioning judiciary. At some point Democrats need judges, even unlikable ones, just to keep the system going.

Congress can’t “fire Justices if it so chooses.” Under Article III, federal judges serve for life so long a they act in “good behavior.” “Good behavior” means something more than “Congress doesn’t like you,” and has meant stuff like being drunk, taking bribes, and things like that.

“Good behavior” has been interpreted and it doesn’t mean “Congress doesn’t like you.”

I’m not saying you’re wrong, but… do you have a cite there?

I don’t see how Marbury vs. Madison applies here, and my impression is that Roosevelt didn’t try to impeach Justices due to a combination of it not being POLITICALLY possible and not actually, you know, wanting to.

I’m not going to cite you for the proposition that Congress doesn’t interpret the constitution

… except sometimes it does.

I don’t recall Clinton going to the courts to argue that his actions didn’t rise to the level of an impeachable offense, and could they please tell Congress to stop impeaching him, because the standard for impeachment is in the Constitution and the courts interpret the constitution.

(And if he did do this, he got laughed out of court, because I also don’t recall the impeachment proceedings coming to an abrupt halt.)

Under Article 2, “High crimes and misdemeanors” are impeachable offenses. Clinton was impeached for perjury, a felony, which is well within the Article 2 impeachable offenses. He wasn’t impeached for “godless socialism and being a cracker-ass cracker.” If he had been, he would have challenged it in court and probably won.

I’m prepared to admit that maybe this isn’t as clear-cut as I thought it was, but it seems like deciding what the standard is for something is a job that belongs to the body that determines if someone has violated that standard.

That is in fact the whole underpinning of Marbury v. Madison, is it not? The courts set legal standards because they’re the body in charge of determining if those standards have been violated in the context of existing laws.

The Constitution explicitly gives responsibility for removing Presidents and judges to Congress. But if the courts could decide if a President had committed high crimes and misdemeanors, or a judge had violated standards of good behavior, and order Congress to halt impeachment proceedings against either, why would impeachment power be given to Congress to begin with?

You’re not going to cite it, because you don’t know what to cite, because there isn’t anything to cite, because you’re wrong. Impeachment is a nonjusticiable political question. (See, e.g., Nixon v. U.S..)

You are right that Congress can’t impeach judges for bad hair, but that limitation is one that can only be enforced by Congress itself, not by the courts.

I’m not sure why you say the Supreme Court is “slated to hear oral arguments in a suit challenging California’s Proposition 8.” They have not granted cert in the Prop 8 case, and while I understand why many people think they might, that’s far from certain given the peculiarities of the case. A little cart-before-the-horse here.

Up here in Canada Eh, there’s a good chance we’ll see highly motivated First Nations warriors in the boreal forest and the coastal rain forest. They’ll be aggressively defending their meagre land and water and coastal rights from tar sands pipeline and hydraulic fracking.. and geez if they won’t have to fend off Chinese super tankers too

I suspect and trust there will be a lot of non tribal folk (white, brown, gray, black n other colored folk) go into the forests to stand with them.. Their fall back (their last redoubt) may be The Supreme Court of Canada.. called upon by savvy patriots.. to decide if its A-OK to send Canadian Forces and the RCMP (Royal Canadian Mounted Police) into the forest to chase the scurrilous Injuns out of the damn forest so we can get our sanctimonious diluted ethical bitumen off to China per schedule..

I hear you got debates a goin on on TV down yer way.. and that’s just great.
You probably have an Injun problem too.. plus the damn Mexicans and stray Muslims, plus the fracking frackers and rabid repubnewcans.. that Civil War.. thet just aint healed